Boies at Play

Yesterday at the Perry v. Schwarzenegger trial was the day you got to see David Boies set loose on a witness, and, to judge by the transcript, his cross-examination was a little like watching your cat play with his food before he eats it.

The witness in question was Kenneth P. Miller, an associate professor of political science at Claremont McKenna College, who was brought in by the defense as an expert on gays and political power. On direct examination by Charles Cooper, the lead lawyer defending Prop. 8, Miller confidently outlined an “upward trajectory” of power for gays and lesbians in this country. Their allies, he said, included the Democratic Party, “elected officials at all levels of government,” organized labor, corporations, newspapers, celebrities, churches, and “professional associations of physicians.” (What about major-league sports teams?) At the national level in the past year, they’d seen passage of the Matthew Shepard Hate Crimes Act, and a sympathetic speech by President Obama at the annual dinner of the Human Rights Campaign, the gay-rights-advocacy organization. Nancy Pelosi was in the LGBT community’s corner; Arnold Schwarzenegger was a friend. If political power meant the ability to attract the attention of lawmakers, a definition Miller cited, then surely gays and lesbians had it.

My favorite moment was Miller’s Page Six boldface-style listing of Hollywood sympathizers: “I think it’s fair to say that the entertainment industry generally, though maybe not 100 percent, has supported the LGBT rights movement,” Miller ventured, and later added that companies and people who’d contributed to the No on 8 campaign or otherwise endorsed same-sex marriage included “Lucas Films, David Geffen, Steven Spielberg, Kate Capshaw, Brad Pitt, Ellen Degeneres, Steven King, Michael King, and Mr. Reiner, as well.” At which point, the Prop. 8 lawyer David Thompson said, “We’ve come to a logical stopping point”—why, it wasn’t clear—and suggested lunch.

After lunch, however, David Boies made his meal of Miller, a smart guy whose basic point—that the social acceptance and political profile of gays and lesbians are on the rise—is certainly correct. But Boies is devilish on the details, and with the details, you can begin to raise doubts about this picture. You can point to backlash and continuing discrimination—and to the very fact that Proposition 8 passed. And if you are Boies, you will do all that and more, in tart and relentless style.

Boies asked Miller, for instance, if he thought gays and lesbians were underrepresented among elected statewide officials in California. Miller said he couldn’t answer. He wasn’t sure how to calculate a concept like underrepresentation because he wasn’t sure what the numerator and denominator would be—a reasonable, if slightly fussy, point. But Boies wasn’t about to let it go. “Well, sir, take California. You know that no openly gay or lesbian person has ever in the history of the state, been elected to statewide office, correct? Miller replied, “No openly gay person, that’s correct.” Then Boies underlined his point: “Not governor, not lieutenant governor, not attorney general, not senator. Correct, sir?” Miller allowed that it was. “So in that case,” Boies said, “whatever the denominator would be, the numerator would be zero, correct?”

Boies suggested that nationally, gays and lesbians were still struggling to achieve their political goals. He had Miller confirm that the Defense of Marriage Act had not yet been repealed and neither had “Don’t ask, don’t tell,” and that up until 2003, when the Supreme Court issued its decision in Lawrence v. Texas, thirteen states still maintained laws that criminalized sexual practices between consenting adults who were gay. And Boies pinged away at Miller’s familiarity with the general subject of gay rights, asking him if he’d read the work of any number of scholars who write on same-sex marriage, most of which Miller said he had not. (Shout-out to Andrew Sullivan: he has, however, read you.) Eventually, Boies turned to the heart of Miller’s expertise: ballot initiatives. He quoted back to him from his own work, citing Miller’s observation that the legislative process maximized opportunities for “refinement, informed deliberation, consensus building and compromise,” while “the initiative process by its nature undermines them.”

Miller tried to deflect him, saying that he’d modified his sentiments on the subject since he’d written that. But when he confirmed that he had studied nine hundred initiatives, Boies pounced, asking in how many of those nine hundred had informed deliberation, compromise, and so on been part of the process. “I can only give anecdotal examples,” came the answer. Boies: “How many examples could you give?” Miller: “I don’t know today. ” Boies: “As you sit here now?” Miller: “Do you want a few? I don’t know.” Boies: “I’m asking you how many.” Miller: “I don’t know.” Boies: “Approximately how many?” Miller: “I’d have to think about it. Maybe three or four, five. I don’t know.” Boies: “Okay.”

At one point in the afternoon, the Prop. 8 lawyer Charles Cooper objected, saying Boies was badgering the witness. But Judge Vaughn Walker overruled it, “This is cross-examination,” he said, and seemed to imply: This is David Boies. What do you expect?